Legal Issues

NSA Surveillance Makes for Strange Bedfellows

The controversy over U.S. government surveillance has produced a king-size collection of strange bedfellows. Beneath the covers one finds both amusing ironies and sober insights into the nature of American governance and political psychology.

In the wake of the leaks by former NSA contractor Edward Snowden, the American Civil Liberties Union filed suit in federal court in New York to block the National Security Agency’s vast phone data collection program. No surprise there. The NSA responded that Congress authorized the electronic snooping when it passed the Patriot Act, the post-9/11 legislation allowing for the collection of records “relevant” to fighting terrorism.

Now one of the lead authors of the Patriot Act has joined the ACLU in a “friend of the court” brief (PDF). Representative James Sensenbrenner (R-Wis.), represented by the Electronic Frontier Foundation, another civil liberties nonprofit group, contends that “the unfocused dragnet undertaken by [the NSA] is exactly the type of unrestrained surveillance” Congress intended to prevent. The vast majority of the records collected, the brief adds, “will have no relation to the investigation of terrorism at all.”

Photograph by Alex Wong/Getty ImagesFormer U.S. Attorney General John Ashcroft (right) holds up a copy of a Justice Department Patriot Act report during a news briefing with Representative James Sensenbrenner in 2004

Having an architect of the Patriot Act disavow the NSA’s interpretation of the statute would seem like a devastating blow to the spy agency’s collection of phone numbers, call times, and other information. (The government insists that it actually listens to what people are saying only in connection with specific national security investigations.)

On the other hand, the Sensenbrenner brief acknowledges that Congress hasn’t been terribly diligent in exercising its oversight responsibilities. Lawmakers reauthorized the Patriot Act in 2009 and 2011, after the NSA briefed Congress on its surveillance activity. Sensenbrenner insists that the NSA’s disclosure was “sorely lacking in detail,” and as a result few members of Congress understood what they were reauthorizing. Hmm …

The brief, perhaps inadvertently, reveals another instance of lawmakers voting for complicated legislation many of them later claim never to have fully comprehended (see also: Obamacare, Wall Street reform, and so forth). The laxity on Capitol Hill strikes me as every bit as unsettling as the allegation of NSA overreaching.

Another unlikely party in bed with the ACLU is the National Rifle Association. The NRA has filed a separate brief (PDF) opposing the NSA. In a press release announcing its position, the organization best known for advocating expansive gun rights under the Second Amendment emphasizes that it “supports the whole Constitution,” including protections of free speech and safeguards against overly intrusive government searches.

On closer examination, though, the NRA’s concerns hew closely to its traditional priorities. The NSA’s surveillance, the gun group argues, “could allow identification of NRA members, supporters, potential members, and other persons with whom the NRA communicates, potentially chilling their willingness to communicate with the NRA.” In addition, the brief contends, tracking phone calls “could allow the government to circumvent legal protections for Americans’ privacy, such as laws that guard against the registration of guns or gun owners.”

In other words, the NRA fears that the NSA would become a tool of gun-control activists eager to frustrate the firearm proponents’ prolific fundraising and political advocacy. Unlikely as that may seem, the brief provides a vivid example of how the NRA stokes anxiety over federal conspiracies. The anxiety, in turn, propels the very fundraising the NRA purports to see as threatened by counterterrorism efforts.

I’m an NRA member for research purposes. When I received the group’s e-mail advertising the alliance with the ACLU and Representative Sensenbrenner, it was accompanied by a solicitation for a fresh donation and a message from actor and gun activist Chuck Norris to “trigger the vote.” This kind of nimbleness illustrates why the NRA is so effective in rallying its loyalists, no matter what the context.